C.F.R. » Title 43 » PART 46—IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 › Subpart C—Initiating the NEPA Process

43 C.F.R. § 46.215

Categorical exclusions: Extraordinary circumstances

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Extraordinary circumstances (see § 46.205(c)) exist for individual actions within categorical exclusions that may meet any of the criteria listed in paragraphs (a) through (i) of this section. Applicability of extraordinary circumstances to categorical exclusions is determined by the Responsible Official. If an extraordinary circumstance is not present, the Responsible Official may determine that the categorical exclusion applies to the proposed action and conclude review.

(a) Have significant impacts on public health or safety.

(b) Have significant impacts on such natural resources and unique geographic characteristics as historic or cultural resources; park, recreation or refuge lands; wilderness areas; wild or scenic rivers; national natural landmarks; sole or principal drinking water aquifers; prime farmlands; wetlands; floodplains; national monuments; migratory birds; and other ecologically significant or critical areas.

(c) Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks.

(d) Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.

(e) Have a direct relationship to other actions that implicate potentially significant environmental effects.

(f) Have significant impacts on properties listed, or eligible for listing, on the National Register of Historic Places as determined by the bureau.

(g) Have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species.

(h) Significantly limit access to and ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners or significantly adversely affect the physical integrity of such sacred sites.

(i) Contribute to potentially significant effects resulting from the introduction, continued existence, or spread of noxious weeds or non-native invasive species known to occur in the area or from other actions that promote the introduction, growth, or expansion of the range of such species (Federal Noxious Weed Control Act).

Notes of Decisions
Cited in 23 cases (5 in the last 5 years), 2009–2026 · leading case: Oregon Natural Desert Ass'n v. Cain
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Oregon Natural Desert Ass'n v. Cain (2014) ord · cites it 14× “See 43 C.F.R. § 46.215 . For instance, if the proposed action will “[h]ave highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks,” Id.”
Safari Club International v. Salazar (2013) dcd · cites it 6× “(h) Have significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or have significant impacts on designated Critical Habitat for these species 43 C.F.R. § 46.215 . In particular, the EWA plaintiffs suggest that the Removal…”
Reed v. Salazar (2010) dcd · cites it 3× “4 ; 43 C.F.R. § 46.215 . Pursuant to regulations promulgated by the Department of the Interior (“DOI”), extraordinary circumstances exist for individual actions within categorical exclusions that may meet any of the following criteria: *104 (a) Have significant impacts on public…”
Center for Biological Diversit v. Ken Salazar (2013) ca9 “6; 43 C.F.R. § 46.215 (f). We conclude that BLM appropriately found that issuance of the gravel permit fell into a categorical exclusion and adequately explained why the permit had no “cumulatively significant” environmental effects preventing application of the categorical…”
New England Anti-Vivisection Society v. United States Fish & Wildlife Service (2016) dcd “4 ; 43 C.F.R. § 46.215 , that would bar such an exclusion were present.”
W. Watersheds Project v. Bernhardt (2019) ord · cites it 2× “It concluded that "the proposed action did not trigger any of the extraordinary circumstances described in 43 C.F.R. § 46.215 ." The CX also concluded that the Permit was "in conformance with the [land use plans], qualifies as a categorical exclusion, and does not require…”
Brady Campaign to Prevent Gun Violence v. Salazar (2009) dcd “43 C.F.R. § 46.215 . Such extraordinary circumstances include actions that have (a) significant impacts on public health or safety, (b) significant impacts on .”
Sauk Prairie Conservation Alli v. DOI (2019) ca7 “See 43 C.F.R. § 46.215 . The Alliance claims four are at issue here.”
W. Watersheds Project v. Bernhardt (2019) ord “It concluded that "the proposed action did not trigger any of the extraordinary circumstances described in 43 C.F.R. § 46.215 ." The CX also concluded that the Permit was "in conformance with the [land use plans], qualifies as a categorical exclusion, and does not require…”
Earth Island Institute v. Cicely Muldoon (2023) ca9 · cites it 2× “See 43 C.F.R. § 46.215 . The Institute invokes one of these situations, arguing that extraordinary circumstances are present here because the Projects may have “highly controversial environmental effects.”
Rocky Mountain Peace & Justice Center v. United States Fish and Wildlife Service (2021) cod · cites it 6× “See 43 C.F.R. § 46.215 . Here, the FWS determined that the trail modifications in the 2018 EAS fall within three categorical exclusions: (1) “minor changes in the amounts or types of public use on Service or State-managed lands, in accordance with existing regulations,…”
Rocky Mountain Peace & Justice Center v. United States Fish and Wildlife Service (2022) ca10 · cites it 3× “As noted, the Service cannot rely on categorical exclusions if certain extraordinary circumstances apply, including when the proposed action may have (1) “significant impacts on public health or safety,” or (2) “highly controversial environmental effects.”
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